>> ALL RISE. >> SUPREME COURT OF FLORIDA IS NOW IN SESSION. PLEASE BE SEATED. >> BEFORE WE PROCEED WITH OUR NEXT CASE WE HAVE STUDENTS HERE FROM THE

Transcription

1 >> ALL RISE. >> SUPREME COURT OF FLORIDA IS NOW IN SESSION. PLEASE BE SEATED. >> BEFORE WE PROCEED WITH OUR NEXT CASE WE HAVE STUDENTS HERE FROM THE TRINITY SCHOOL OF CHILDREN. AM I CORRECT? AND WHAT GRADE LEVEL DO WE HAVE HERE? 7th GRADE? SO WE HAVE 7th GRADERS BEFORE THIS MORNING. SO YOU MUST HAVE A BIG 7th GRADE CLASS. GREAT. AND WE HAVE TEACHERS? CAN YOU STAND UP PLEASE. SO THERE IS TWO OF YOU THIS TIME. THIS MORNING THERE WAS JUST ONE. TERRIFIC. WHERE IT TRINITY SCHOOL AT? >> TAMPA. >> FINE. YOU CAME, I TAKE IT MORE THAN ONE BUS? >> TWO BUSES. >> WHEN DID YOU GET HERE? [INAUDIBLE] >> HAVE YOU BEEN ACROSS THE STREET TO THE LEGISLATURE YET? THIS IS YOUR SECOND STOP. ALL RIGHT. WELL, THANK YOU. WE ALSO HAVE A GROUP FROM FLORIDA STATE UNIVERSITY, AM I CORRECT? CAN YOU STAND UP PLEASE. ONE OF YOU CAN TELL US WHAT IS IT THAT, WHAT YOUR GROUP IS? >> [INAUDIBLE]. >> FRATERNITY FOR CRIMINAL JUSTICE? GOODNESS. WELL, THANK YOU. OKAY. NOW WE HAVE THE CASE OF SCALOORE VERSUS STATE OF FLORIDA.

2 I'M SORRY, I MISPRONOUNCED IT OKAFOR. >> MAY IT PLEASE THE COURT. MY NAME IS VALARIE LINNEN, AND I REPRESENT THE DEFENDANT BESSMAN OKAFOR. THERE ARE 10 ISSUES BEFORE THE COURT. I LIKE TO JUMP TO THE MOST OBVIOUS AND THE HURST ERROR AND LACK OF UNANIMITY. IN THIS CASE THE VERDICT, THE JURY RECOMMENDATION WAS 11-1 IN FAVOR OF A SENTENCE TO DEATH. IT WAS NOT UNANIMOUS AND THE TRIAL COURT MADE THE FINDINGS OF FACT RATHER THAN THE JURY MAKING THOSE FINDINGS. UNDER THIS COURT'S DECISION IN HURST, THAT REQUIRES RESENTENCING. THE ERROR WAS NOT HARMLESS BECAUSE THERE WAS AT LEAST ONE JUROR THAT FOUND THE AGGRAVATION EITHER HADN'T BEEN ESTABLISHED BEYOND A REASONABLE DOUBT, THAT THE AGGRAVATION DID NOT OUTWEIGH THE MITIGATION. MITIGATION WAS ABSENT BUT THE AGGRAVATORS WERE INSUFFICIENT OR THERE IS THE CHANCE THIS JUROR JUST DECIDED THAT JUSTICE WAS BEST SERVED WITH MERCY. SO IT CAN NOT BE SAID THAT THIS JURY RECOMMENDATION WAS HARMLESS BEYOND A REASONABLE DOUBT. I UNDERSTAND THIS COURT'S EXISTING PRECEDENT IN DAVIS VERSUS STATE. WOULD I ASK THE COURT TO REVISIT THAT BECAUSE IT'S IMPOSSIBLE TO KNOW, THERE WERE FOUR AGGRAVATORS IN THIS CASE. IT'S IMPOSSIBLE TO KNOW WHETHER OR NOT ALL 12 JURORS AGREED ON ALL FOUR AGGRAVATORS. SO I WOULD ASK THE COURT TO REVISIT THAT. ESPECIALLY IN LIGHT OF THE EXCESSIVE AND IMPERMISSIBLE

3 IMPACT TESTIMONY THAT WAS PRESENTED IN THIS CASE. THE GUILT PHASE IS VIRTUALLY ERROR-FREE. THERE WAS ONLY ONE DISCERNIBLE ERROR. THE PENALTY PHASE IS WHERE THE ERRORS AROSE. >> WHY DO YOU BELIEVE THAT THE IMPACT EVIDENCE WAS EXCESSIVE? I MEAN, HOW MANY WITNESSES ACTUALLY TESTIFIED? >> SIX, YOUR HONOR. >> AND SO, DO WE HAVE CASE LAW THAT SAYS THAT BECAUSE SIX WITNESSES TESTIFIED THAT THAT IS EXCESSIVE? >> NO, YOUR HONOR. THIS COURT'S CONSISTENTLY UPHELD THREE. THIS COURT HAS GONE AS FAR AS FOUR. THIS COURT NEVER UPHELD SIX VICTIM IMPACT WITNESS. >> HAS THERE BEEN A CASE WHERE IT HAS BEEN QUESTIONED AND WE SAID, SIX WAS TOO MANY? >> NOT TO MY KNOWLEDGE, YOUR HONOR. AND IT WASN'T JUST THE SHEER NUMBER OF THE VICTIM IMPACT WITNESSES BUT IT WAS THE SUBSTANCE OF THEIR TESTIMONY AS WELL. SO TO BE CLEAR, THE ONLY ISSUES DURING THE PENALTY PHASE ARE AGGRAVATION, MITIGATION, AND MERCY. SO VICTIM IMPACT TESTIMONY IN THIS CASE, AT LEAST ACCEPTING THE STATE'S THEORY OF THE CASE IS TRUE, MR. OKAFOR DID NOT KNOW THE VICTIM OR BRIEFLY ENCOUNTERED THE VICTIM BEFORE THE MURDER. HE DIDN'T KNOW ANYTHING ABOUT THE VICTIM IMPACT TESTIMONY THAT WAS PERMITTED. IT DOESN'T HAVE ANYTHING TO DO WITH HIS BLAME WORTHY INSIST OR

4 HIS CULPABILITY. THE PROBLEM IS COMPOUNDED WHERE THE JURY IS ONLY INSTRUCTED THAT THIS TESTIMONY CAN NOT BE CONSIDERED AS AGGRAVATION. THEY'RE NOT INSTRUCTED HOW THEY CAN CONSIDER IT AND WHAT WEIGHT TO GIVE IT. IF IT IS NOT AGGRAVATION, IT IS NOT MITIGATION CERTAINLY. >> THIS ISSUE OF WHAT HAPPENS OR WHY VICTIM IMPACT TESTIMONY IS ALLOWED, THE STATUTE ALLOWS IT. THE U.S. SUPREME COURT HAS UPHELD IT. MY CONCERN, YOU SAY SIX IS TOO MANY, IT IS REALLY-- BUT YOU SAID REALLY WHAT WAS SAID, BUT BEFORE WE COULD, I MEAN IF WE REVERSE ON HURST BUT BEFORE WE WOULD REVERSE ON A VICTIM IMPACT ISSUE, DON'T YOU HAVE TO POINT TO SOME SPECIFIC TESTIMONY OR IF IT WAS A LETTER OR WHATEVER, THAT YOU OBJECTED TO AHEAD OF TIME AND THEREFORE WE HAVE SOMETHING TO REVIEW? BECAUSE OTHERWISE TO SAY WELL, THREE COULD BE EXCESSIVE IF, DEPENDING, WERE INAPPROPRIATE DEPENDING WHAT THE STATEMENTS WERE. WHAT IS IT, SINCE, I DON'T THINK THAT WE'RE LOOKING TO CHANGE THE LAW ON VICTIM IMPACT TESTIMONY, WHAT IS, WHAT ARE THE SPECIFIC STATEMENTS THAT YOU WERE OBJECTED TO BEFOREHAND THAT WENT BEYOND WHAT IS PERMISSIBLE VICTIM IMPACT TESTIMONY? >> WELL, CERTAINLY REFERRING TO MR. OKAFOR AS THE GANGSTER "SCARFACE" FROM THE POPULAR MOVIE AND CALLING HIM A EVIL OR WANNABE GANGSTER. THAT WAS CERTAINLY IMPERMISSIBLE. >> THAT WAS IN THE TESTIMONY OF ONE OF THE WITNESSES. >> ONE OF THE WITNESSES.

5 >> WAS THAT OBJECTED TO? >> IT WAS NOT. I WOULD ARGUE TO THE COURT THAT REACHES THE LEVEL OF FUNDAMENTAL ERROR BECAUSE OF THE PREJUDICIAL NATURE OF IT. THEN ON TOP OF THAT, ANOTHER WITNESS, NOW THE ONLY VICTIM AT ISSUE DURING THE PENALTY PHASE WAS THE DECEASED VICTIM. ANOTHER WITNESS WAS PERMITTED TO TESTIFY OVER OBJECTION. THERE WAS AN OBJECTION TO THAT, THAT HE THOUGHT ABOUT HIS SON AND HE WOULD NEVER SEE HIS SON AGAIN. THE JURY HEARD ALL OF THIS. THE ONLY TWO STATEMENTS, THOSE TWO STATEMENTS WERE CLEARLY IMPERMISSIBLE, BUT THE ONLY TWO PIECES OF EVIDENCE DURING THIS WHOLE PENALTY PHASE THAT WENT TO THE PAIN AND SUFFERING OF THE VICTIM WERE THE DECEASED VICTIM LOOKED FORWARD TO TESTIFYING AGAINST MR. OKAFOR IN THE YOU KNOW LYING CRIMINAL TRIAL AND THAT HIS BREATHING QUICKENED JUST PRIOR TO HIS DEATH. THOSE WERE ONLY TWO STATEMENTS. EVERYTHING ELSE PRESENTED DURING THE PENALTY PHASE WAS VICTIM IMPACT TESTIMONY. SO WITHOUT LOOKING AT IT, YOU KNOW, COME PART MENTALLY OR IN A VACUUM, THIS ONE STATEMENT, THIS ONE STATEMENT, LOOKING AT IT COLLECTIVELY, SIX WITNESSES IN THIS PENALTY PHASE AND ONLY TWO SHORT STATEMENTS ABOUT WHAT THE VICTIM SUFFERED JUST PRIOR TO HIS DEATH. THAT DEPRIVED MR. OKAFOR OF A FUNDAMENTALLY FAIR PROCEEDING AND DUE PROCESS OF LAW BUT THEN, SO THAT WAS THE PENALTY PHASE. THE ERROR WAS COMPOUNDED DURING THE SPENCER HEARING. SO TO BE CLEAR, THE TRIAL JUDGE HAD ALREADY SAT THROUGH THE

6 PENALTY PHASE AND HE HEARD THOSE SIX VICTIM IMPACT WITNESSES. THEN THE STATE PRESENTED AN ADDITIONAL THREE MORE WITNESSES AND THEY RECOMMENDED A SENTENCE OF DEATH SEVEN TIMES. THE STATUTE CLEARLY PROHIBITS THAT AND THOSE WERE OBJECTED TO BUT SEVEN TIMES THEY RECOMMENDED A SENTENCE OF DEATH. THE VICTIM'S MOTHER SPECULATED THAT MR. OKAFOR WOULD COMMIT MORE CRIMES IF HE WAS SENTENCED TO LIFE IMPRISONMENT. SHE CHARACTERIZED HIM AS EVIL MAN AND GAVE BIBLICAL JUSTIFICATIONS FOR HIS EXCUSE. THE VICTIM'S FATHER ALSO TESTIFIED. WHILE HIS ANGER IS CERTAINLY UNDERSTANDABLE, THREATENING MR. OKAFOR WITH TORTURE AND SAYING, SEE YOU IN 10 YEARS, YOU'RE DEAD, WHICH APPARENTLY, THAT IS WHAT CAUSED THE ERUPTION IN THE COURTROOM. THAT WAS CLEAR IMPERMISSIBLE. >> THIS WAS NOT BEFORE THE JURY? >> NOT BEFORE THE JURY. >> THIS WAS AT THE SPENCER HEARING? >> THE SPENCER HEARING BEFORE THE JUDGE. I HEARD THIS COURT SAY IT BEFORE, SERVED TO NOTHING BUT MR. OKAFOR IN THE CROSS-HAIRS OF A DEATH SENTENCE. VICTIM IMPACT TESTIMONY NOT JUST BEFORE THE JURY BUT BEFORE THE JUDGE HIM IS WAS CLEARLY IMPERMISSIBLE AND DEPRIVED MR. OKAFOR OF A FAIR PROCEEDING. >> ALL THIS WOULD BE MOOT IF YOU IN FACT, IF MR. OKAFOR IS ENTITLED TO A NEW PENALTY PHASE? >> YES, YOUR HONOR. AND THAT IS UNDER THIS COURT'S PRECEDENT. I WOULD ASK GOING BACK, BECAUSE IF WE ARE GOING TO GO BACK FOR A

7 NEW PENALTY PHASE, THAT THERE BE SOME DIRECTION FROM THE COURT ABOUT THIS VICTIM IMPACT EVIDENCE. NOW THE GUILT PHASE WAS VIRTUALLY-- LET ME TURN TO THE HEINOUS, ATROCIOUS AND CRUEL AGGRAVATOR. THAT WAS OBJECTED TO IN THIS CASE. IT WAS NOT SUPPORTED BY THE EVIDENCE. SO TO BE CLEAR, ALL MURDERS AS THIS COURT HAS SAID ARE HEINOUS, ATROCIOUS AND CRUEL BUT THE HAC AGGRAVATOR APPLIES TO THOSE ESPECIALLY HEINOUS, ATROCIOUS AND CRUEL. >> THERE WAS MULTIPLE GUNSHOTS IN THIS CASE. SO WAS THE VICTIM STILL ALIVE WHEN THE FIRST SHOT WAS FIRED? >> THE MEDICAL EXAMINER WAS NOT ABLE TO SAY. ONE OF THE EYEWITNESSES TESTIFIED THAT THE VICTIM STOPPED BREATHING AFTER THE FIRST SHOT. SO HE WAS BREATHING HEAVILY UNTIL THAT FIRST SHOT AND THEN HE STOPPED BREATHING. >> DON'T MEAN THE FIRST SHOT TO HIM, BUT THE FIRST SHOT FIRED AT ALL IN THAT DAY? >> IF I REMEMBER-- >> BECAUSE I THOUGHT, IT WAS LIKE A STRAY SHOT FIRST? >> YES, YOUR HONOR. IT DID APPEAR THAT WAY. I THINK I'M SPEAKING FROM THE, I'M NOT CLEAR. LET ME SAY THAT. >> I DIDN'T HEAR, IT APPEARED WHAT WAY? >> THERE WAS A STRAY SHOT FIRED AT SOME POINT DURING THE EVENTS THAT HAPPENED. >> THE INITIAL SHOT I THOUGHT. >> THE INITIAL SHOT I BELIEVE APPEARED TO BE.

8 THEY RETREATED TO A COFFEE TABLE. AS WHETHER THE VICTIM DIED AFTER THE FIRST SHOT OR THE SECOND SHOT IT APPEARED HE DIED AFTER THE FIRST SHOT OR APPEARED LOST CONSCIOUSNESS. >> CLEARLY FROM HAC STANDPOINT WE LOOK AT IT FROM THE STANDPOINT THE VICTIMS WERE GOING THROUGH AS OPPOSED TO CCP AS WE LOOK AT THE STANDPOINT WHAT THE DEFENDANT WAS THINKING. LOOKING AT THE VICTIM'S STANDPOINT, THE TESTIMONY WAS THAT REMINGTON AND BREANNA TESTIFIED ALL THREE OF THEM WERE ALL FORCED TO LAY DOWN ON THE FLOOR AND BREANNA TESTIFIED THAT ONE OF THE GUNMAN SAID, SOMEONE IS GOING TO DIE TONIGHT. THAT WOULD HAVE CAUSED EVERYONE OF THEM HAVE A DEGREE OF APPREHENSION LAYING FACE DOWN ON THE FLOOR AND THESE GUYS HAVE GUNS. THEN THEY ASKED, WHEN SOMEONE ASKED, DID YOU MISS AFTER THE FIRST SHOT? AND THEN ALEXIS BREATHING. BREANNA, ALEX'S BREATHING WAS REALLY HEAVY. WHEN THE SHORT WAS FIRED AROUND THE QUESTION WAS ASKED, DID YOU MISS, HIS BREATHING GOT EVEN HEAVIER. I MEAN, YOU KNOW, WHAT IS GOING ON THROUGH SOMEONE'S MIND I DON'T THINK FOR HAC PURPOSES IS MEASURED BY HOW MANY SECONDS OR HOW MANY MINUTES PEOPLE ENDURED THAT KIND OF ANTICIPATION BUT WHAT THE ANTICIPATION WAS IT SEEMS TO ME, THAT UNDER THESE CIRCUMSTANCES IS NOT THE TYPICAL CASE WHERE SOMEONE GETS SHOT AND IT IS OVER WITH. THESE PEOPLE KNEW IT WAS COMING. SO HOW IS HAC NOT APPLICABLE IN SUCH CIRCUMSTANCES?

9 >> YOUR HONOR, THE AMOUNT OF TIME IS JUST ONE ISSUE THE COURT LOOKED TO IN THE PAST TO DETERMINE HAC AND IN THIS CASE IT, ALL OF THE EVENTS IN QUESTION HERE APPEAR TO HAVE HAPPENED WITHIN AN HOUR AND SIX MINUTES. STARTING AT THE DEFENDANT'S HOME, GOING TO THE GAS STATION, EXCHANGING CARS, EXCHANGING CELL PHONES, GASES UP CAR, GOING TO THE VICTIMS HOME AND COMMITTING MURDERS AND GOING BACK TO THE HOUSE AND ALL HAPPENED IN AN HOUR. HAPPENED VERY QUICKLY. THAT WAS ONLY ONE. BRIENNA CAMPOS, TESTIFIED WHEN THEY LAID THEM DOWN ON THE FLOOR, LIKE LAST TIME, PREVIOUS HOME-INVASION ROBBERY. I'M PARAPHRASING, THAT SHE DIDN'T BELIEVE THEY WERE SERIOUS THAT THEY WOULD HURT THEM BECAUSE THEY DIDN'T HURT THEM THE LAST TIME. CERTAINLY AFTER THE FIRST STRAY SHOT WAS FIRED THAT WOULD HAVE CHANGED. IF WE LOOK AT IT COLLECTIVELY THE FACT THAT THE GUNMAN ATTEMPTED TO MURDER THE DECEASED VICTIM HERE TO A GUNSHOT TO THE HEAD. AS HEINOUS AND ATROCIOUS AND CRUEL AS THAT SOUNDS, HE, BY DOING SO DID NOT INTEND TO PROLONG PAIN AND SUFFERING FOR THIS VICTIM. >> THAT IS [INAUDIBLE] LOOK AT IT FROM WHAT THE DEFENDANT-- >> CORRECT. >> DON'T WE ALREADY HAVE CASE, MULTIPLE CASES THAT CROSSED THIS BRIDGE? WE HAVE THE CASE WHERE A COUPLE OF SISTERS LIVED TOGETHER. YOUNG MAN KILLS ONE OF THEM AND

10 UPHELD HAC WITH REGARD TO-- AND THE VICTIMS THAT WERE REQUIRED TO LIE ON THE FLOOR AND-- [INAUDIBLE]. SO I DON'T THAT UNDERSTAND. YOU START GETTING INTO WHAT THE DEFENDANT THOUGHT YOU'RE CHASING A RABBIT. >> OKAY. >> I THINK YOU BETTER GET BACK INTO WHETHER PEOPLE STATED IT CORRECTLY-- [INAUDIBLE] >> I UNDERSTAND, YOUR HONOR. THESE VICTIMS ALSO WERE NOT TORTURED. SO THIS COURT CERTAINLY SEEN PLENTY OF CASES WHERE VICTIMS WERE TORTURED AND UPHELD THE HAC. >> ONLY ISSUE HERE IS SINCE, IF THERE WASN'T A HURST ISSUE IT IS PRETTY HARD TO ARGUE THIS, ASSUMING IT WAS IMPROPERLY FOUND THAT IT WOULD BE HARMLESS ERROR OTHER AGGRAVATION, THE ATTEMPTED MURDERS OF THE OTHER TWO VICTIMS MAKES, IN MY VIEW A VERY HEAVILY AGGRAVATED CRIME. THE ONLY ISSUE IS WHETHER, WHEN IT IS GOING BACK WHETHER THERE IS SUFFICIENT EVIDENCE FOR THAT AGGRAVATOR TO GO TO THE JURY, RIGHT? >> CORRECT, YOUR HONOR. >> SO, DO YOU HAVE ANY OTHER PENALTY, ANY OTHER POINT? >> NO. JUST THAT IT TOOK PLACE QUICKLY. THAT THE VICTIM DID NOT ENDURE PROLONGED PAIN AND SUFFERING. HE WASN'T TORTURED. THAT REALLY ESTABLISHES AT THAT WAS NOT ESPECIALLY HEINOUS ATROCIOUS AND CRUEL. ALL MURDERS ARE HEINOUS, A ATROCIOUS AND CRUEL BUT NOT ESPECIALLY. WITH ALL THE OTHER CASES THAT THE COURT CONSIDERED FOR THE HAC AGGRAVATOR.

11 ASIDE FROM THAT THE GUILT PHASE WAS VIRTUALLY-- LET ME DEAL WITH THAT QUICKLY. DURING THE GUILT PHASE THERE WAS A MAGAZINE CLIP THAT WAS FOR A HIGH-POWERED RIFLE,.22 CALIBER RIFLE THAT WAS ADMITTED INTO EVIDENCE. THAT WAS THE ONLY ERROR I WAS ABLE TO DISCERN DURING THE PENALTY PHASE. EXCUSE ME, DURING THE GUILT PHASE. THIS-- >> EVEN IF THAT WAS ERROR I'M HAVING A HARD TIME UNDERSTANDING HOW IT WOULD PREJUDICE YOUR CLIENT WHEN THE TESTIMONY WAS THAT HIGH CAPACITY MAGAZINE BELONGED TO WALLACE? >> YOUR HONOR, THERE WAS SOME-- FIRST AND FOREMOST THERE WAS A VERY LITTLE TANGIBLE EVIDENCE PRESENTED TO THE JURY IN THIS TRIAL. SO JURY-- >> THERE WAS VERY LITTLE-- KEEP YOUR VOICE UP A LITTLE BIT WHAT? >> VERY LITTLE TANGIBLE EVIDENCE PRESENTED TO JURY AT THIS TRIAL. EVIDENCE THAT THE JURY COULD LOOK AND EXAMINE AND SOMETIMES THEY'RE ALLOWED TO PASS IT AROUND. IN THIS CASE, THIS WAS IT. THERE WERE A COUPLE OF PROJECTILES RETRIEVED FROM THE SCENE. AND WHAT-- THERE WERE NO FIREARMS RETRIEVED IN THIS CASE FOR ANY OF THE CODEFENDANTS. SO THE PROJECTILES FOUND AT SCENE OF THE CRIME WERE 38 CALIBER. MR. OKAFOR DIDN'T CARRY THIS RIFLE. HE REALLY DIDN'T FIRE THIS RIFLE. IT WAS REALLY I RECALL RELEVANT TO THE PROCEEDINGS AT HAND.

12 MAYBE TO THE DEFT BUT NOT IN OKAFOR. THE JURY DIDN'T SEE A LOT OF EVIDENCE, IT WAS A LOT OF TESTIMONY BUT NOT A LOT OF EVIDENCE, THAT COMPOUNDED THE PREJUDICIAL ERROR HERE. NOW IN THE SENTENCING ORDER, THE TRIAL COURT REQUIRED A NEXUS. >> SO IS YOUR RULE ANYTIME PHYSICAL EVIDENCE IS INAPPROPRIATELY ADMITTED IN A LOW PHYSICAL EVIDENCE CASE IT IS HARMFUL. >> NO, YOUR HONOR. IT IS CERTAINLY ON CASE-BY-CASE BASIS, LOOKING AT ALL THE FACTS AND CIRCUMSTANCES OF THE CASE HERE. NOW TURNING TO THAT SENTENCING ORDER. >> WHAT WAS IT, WHAT WAS THE REASON THE STATE OFFERED-- THERE WAS A CODEFENDANT TRIED IN THE SAME CASE? >> NO. THE CODEFENDANT WAS TRIED SEPARATELY. THAT IS WHY IT BECOMES EVEN MORE IRRELEVANT BECAUSE IT DIDN'T HAVE ANYTHING TO DO WITH MR. OKAFOR'S ACTIONS T WAS ADMITTED, I BELIEVE THE TRIAL COURT ADMITTED IT ON THE BASIS-- I MIGHT BE MISSPEAKING HERE, THAT IT SHOWED MR. OKAFOR WAS WITH SOMEONE WHO POSSESS AD.22 CALIBER RIFLE. >> YOU'RE NOT ARGUING THAT AS GUILT PHASE ERROR? >> YES, THERE WAS DURING THE GUILT PHASE. >> I THOUGHT YOU WERE SAYING THERE WAS NO GUILT-- >> VIRTUALLY ERROR-FREE. ONLY DISCERNIBLE ERROR DURING THE GUILT PHASE. THE MAJORITY CAME DURING THE PENALTY PHASE. GOING BACK TO THE PENALTY PHASE,

13 THE SENTENCING ORDER REQUIRED A NEXUS, A CAUSATION ON NINE OF THE 14 OFFERED MITIGATING TO FACTORS. INDEED THE TRIAL COURT SAYS CAUSE. THIS DID NOT CAUSE HIS CONDUCT IN QUESTION SEVERAL TIMES. SO I UNDERSTAND THIS COURT HAS HELD THAT A NEXUS CAN NOT BE REQUIRED BUT THAT IS TRIAL COURT CAN EXPLAIN OR PUT IT INTO CONTEXT THE MITIGATION OFFERED. THIS WENT BEYOND THAT BECAUSE THE TRIAL COURT REPEATEDLY SAID CAUSE. THE ONLY OTHER ERROR IN THE CASE WAS DURING JURY SELECTION. I BELIEVE THAT WAS ADEQUATELY BRIEFED, UNLESS THE COURT HAS QUESTIONS ABOUT THAT JURY SELECTION ISSUE. AS ALWAYS I ASK THIS COURT TO REVISIT ITS POSITION WHETHER THE DEATH PENALTY COMPLIES WITH THE EVOLVING STANDARD OF DECENCY UNDER THE EIGHTH AMENDMENT. IF THERE ARE NO FURTHER QUESTIONS FROM THE COURT I WOULD LIKE TO RESERVE MY TIME FOR REBUTTAL. THANK YOU. >> MAY IT PLEASE THE COURT. MY NAME IS VIVIAN SINGLETON. I'M WITH THE ATTORNEY GENERAL'S OFFICE. >> LET ME ASK YOU THIS. GIVEN THE EVIDENCE IN THIS CASE, WHAT WAS THE PURPOSE OF INTRODUCING THAT CLIP THAT CLEARLY WAS IRRELEVANT IN THIS CASE? WHY THROW THAT THING IN THERE? >> I'M SORRY. THE PURPOSE IN INTRODUCING THE CLIP FROM THE MAGAZINE, NO THE TO SHOW IT WAS USED TO KILL MR. ZALDIVAR. THAT WAS NOT THE STATE'S PURPOSE IN DOING SO.

14 THE PURPOSE WAS IDENTIFYING ONE OF THE COCONSPIRATORS WITH MR. OKAFOR AT THE HOME. MR. REMINGTON CAMPOS, ONE OF THE VICTIMS IN THE HOME, TESTIFIED ONE OF THE GUN MAN HE SAW WAS TALL, HAD LONG DREAD CAN LOCKS AND WAS CARRYING A AK-47. THE PURPOSE OF INTRODUCING THE MAGAZINE CLIP WAS TO SHOW IT COULD HAVE ACTUALLY BEEN SOMETHING THAT COULD HAVE BEEN A PART OF THE WEAPON THAT CARRIED BY MR. EMANUEL WALLACE, ONE OF THE CODEFENDANTS WITH MR. OKAFOR. >> THAT DOESN'T REALLY ANSWER THE QUESTION. HOW DOES THAT TEND TO IMPLICATE THE DEFENDANT IN THE MURDER? I MEAN THEY DIDN'T-- HE WAS, THE CIRCUMSTANTIAL EVIDENCE IN THIS CASE IS MOST OF IT IS BECAUSE OF SOME OF THE STATEMENTS HE MADE, RIGHT? THAT WOULD INDICATE THIS WAS SOMEBODY-- >> YES. >> THIS WAS A MURDER MOTIVATED BY KILLING THE PERSON OR PERSONS THAT WERE GOING TO TESTIFY AGAINST HIM, CORRECT? >> THAT'S CORRECT. >> SO HOW DOES THE FACT THAT, BECAUSE IT COULD BE SOMEBODY ELSE. IT MIGHT NOT HAVE BEEN HIM. MAYBE HE HIRED SOMEBODY. HOW DOES THAT TEND TO SUPPORT THAT HE WAS, THAT THE DEFENDANT THAT FIRED THE SHOTS? >> WELL, IT WASN'T INTRODUCED TO SHOW THAT MR. OKAFOR HAD COMMITTED THE CRIME. IT WAS BEING INTRODUCED ONLY TO CORROBORATE THE TESTIMONY OF REMINGTON CAMPOS WHO TESTIFIED THAT HE SAW A GUNMAN CARRYING AN AK-47. THAT WAS THE ONLY PURPOSE IN IT.

15 >> WHAT WAS THE MURDER WEAPON FOR THE VICTIM IN THIS CASE? >> WE DON'T KNOW SPECIFICALLY WHAT TYPE OF WEAPON IT WAS. >> WAS IT, WAS IT AN ASSAULT RIFLE? >> IT WAS NOT. IT WAS NOT. IT WAS NOT AN ASSAULT RIFLE. >> WAS IT A HANDGUN? >> IT WAS REVOLVER. THE FIREARMS EXPERT TESTIFIED TO WHAT TYPE OF BULLETS THAT WERE USED. THE BULLETS WERE.38 CALIBER,.57 CALIBER, 9MM. SHE TESTIFIED THOSE COULD BE IN A REVOLVER. >> EVEN OOH THEN THE OPPOSING COUNSEL SAYS SHE THREW THAT OUT, STRIKES ME THE IMAGE OF A AK-47, WAS IT CONTESTED BY THE-- BECAUSE THAT CAME OUT, RIGHT, THE TESTIMONY THAT ONE OF CODEFENDANTS HAD AN AK-47. WAS, DID THEY CHALLENGE THAT TESTIMONY AND SO THAT'S HOW IT CAME INTO RELIABILITY OF THE WITNESS'S TESTIMONY? >> THE DEFENSE DID CHALLENGE THE ADMISSION OF IT. THE COURT CORRECTLY GRANTED THE ADMISSION OF IT. LIKE I SAID EARLIER, IT WAS NOT BEING USED TO SHOW THAT WAS THE MURDER WEAPON. >> WHAT WAS THE GROUNDS FOR THE DEFENSE'S CHALLENGE TO IT? >> I DON'T-- PROBABLY RELEVANCE. I DON'T HAVE THAT WITH ME IN FRONT OF ME RIGHT NOW BUT I'M SURE IT WAS RELEVANCE. >> COULD I ASK YOU THIS? WAS THERE ANYTHING IN THE RECORD THAT ESTABLISHES THAT THE CLIP IN HE QUESTION WOULD BE OPERABLE IN A AK-47? >> THAT WAS NOT ESTABLISHED. THE FIREARMS EXPERT WAS ASKED

16 ABOUT WHETHER OR NOT THAT MAGAZINE COULD FIT INTO A RIFLE. SHE SAID THAT IT COULD. SHE WAS NOT SPECIFICALLY ASKED ABOUT AN AK-47. >> WAS THERE AN OBJECTION ON THAT BASIS? >> I CAN NOT RECALL, I'M SORRY. >> WAS IT, SO AGAIN, I JUST, WHERE DID THEY FIND THIS MAGAZINE? >> IT WAS FOUND IN THE HOME THAT MR. EMANUEL WALLACE, ONE OF THE CODEFENDANTS WHERE HE LIVED. ONE OF THEM WAS FOUND INSIDE OF A DUFFLE BAG. ONE WAS FOUND INSIDE OF A DESK DRAWER. >> AND NO CONNECTION TO THE, IT WAS NOT AN AK-47 THOUGH? >> I'M SORRY? >> THIS WASN'T TO BE USED IN AN AK-47? >> WELL IT WAS A MAGAZINE THAT COULD BE USED IN A RIFLE BUT THE FIREARMS EXPERT WAS NOT SPECIFICALLY ASKED ABOUT AN AK-47. >> DID THE, DID THE STATE IN CLOSING, IN THE GUILT PHASE USE THAT, THE EVIDENCE OF THE AK-47 OR THIS MAGAZINE IN ANY WAY TO ARGUE GUILT OF MR. OKAFOR? >> I CAN NOT RECALL EVERYTHING FROM THE CLOSING ARGUMENTS, I'M SORRY. I'M SURE THEY PROBABLY MENTIONED-- >> HERE IS THE PROBLEM. AGAIN YOU'RE UP HERE ARGUING A DEATH CASE AND IF IT IS ERROR, THEN I WOULD ASSUME THAT THE STATE WOULD ARGUE IT IS HARMLESS ERROR, RIGHT? >> YES. >> BUT IF YOU DON'T, WE DON'T KNOW HOW IT IS USED IN CLOSING ARGUMENT OR WE DON'T KNOW WHETHER THE PROPER OBJECTION WAS MADE, WE HAVE TO GO BACK

17 OURSELVES AND LOOK AT THE RECORD, RIGHT? >> WELL, YOUR HONOR, THIS ISSUE IS BRIEFED PRETTY EXTENSIVELY BY MYSELF AND OPPOSING COUNSEL. I'M ALMOST POSITIVE THAT THE OBJECTION WAS RELEVANCE AND IN REGARDS TO WHETHER OR NOT THERE WAS ANY ERROR, IF THERE WAS ERROR IT, WAS HARMLESS BECAUSE-- >> YOU SEE THAT IS WHERE WE GET-- WELL, IT WASN'T HIS GUN, IS THAT WHY IT IS HARMLESS? >> YES, MA'AM. >> BECAUSE THEY DIDN'T TIE IT TO MR. OKAFOR? >> THEY DID NOT TIE IT TO MR. OKAFOR. >> THAT IS SORT OF WHAT MAKES IT SOMEWHAT QUESTION OF RELEVANCE? >> WELL THE RELEVANCE IS TO ADD COLLABORATION TO MR. REMINGTON CAMPOS'S TESTIMONY IN REGARDS TO HE WHO HE SAW AND DESCRIPTION OF THE PERSON HE SAW, THAT HE WAS CARRYING THAT TYPE OF WEAPON. LIKE I SAID EARLIER, IF THERE WAS ANY ERROR AT ALL, IT WAS HARMLESS. THERE WAS PLENTY OF EVIDENCE THAT SHOWED MR. OKAFOR WAS THE TRIGGERMAN. HE WAS THE INSTIGATOR OF THE CRIME. HE IS ONLY ONE THAT HAD MOTIVE TO KILL WITNESSES TO PRIOR ROBBERY AND BURGLARY HAD OCCURRED. EVEN IF THIS MAGAZINE HAD NOT BEEN ADMITTED, MR. OKAFOR COULD STILL HAVE BEEN CONVICTED. THE ADMISSION OF THAT MAGAZINE DIDN'T ADD TO HIS CONVICTION AT ALL. IF THERE WAS ANY ERROR IN ADMITTING IT THE ERROR WOULD BE HARMLESS. IF THERE ARE NO MORE QUESTIONS ABOUT THE MAGAZINE ISSUE.

18 I WANT TO MOVE ON TO THE HURST ISSUE. ANY HURST ISSUE IN THIS CASE IS HARMLESS AS WELL. THE JURY DID FIND TWO OF THE AGGRAVATORS. THE JURY FOUND, JURY FOUND THE PRIOR VIOLENT FELONY AGGRAVATOR WAS PROVEN BECAUSE THEY CONVICTED HIM OF TWO CONTEMPORANEOUS FELONIES. THEY CONVICTED HIM ON TWO COUNTS MUCH ATTEMPTED FIRST-DEGREE MURDER AND ALSO CONVICTED HIM OF ARMED BURGLARY OF A DWELLING WITH EXPLOSIVES. IN ADDITION MR. OKAFOR HAD PRIOR VIOLENT FELONY CONVICTIONS FROM THE PRIOR ROBBERY, BURGLARY OCCURRED AT THE HOME A FEW MONTHS PRIOR TO THIS MURDER. HE ALSO HAD AN AGGRAVATED ASSAULT CONVICTION FROM THE JURY ALSO CONVICTED, FOUND HIM, FOUND THE AGGRAVATOR, CAPITAL TWO FELONY WHILE COMMITTING A BURGLARY. WE KNOW THE JURY FOUND THAT AGGRAVATOR BECAUSE THEY UNANIMOUSLY FOUND HIM GUILTY OF ARMED BURGLARY. NOW THE REMAINING AGGRAVATORS WE DON'T KNOW THAT THE JURY FOUND, HOWEVER, A RATIONAL JURY WOULD HAVE FOUND THAT THE REMAINING AGGRAVATORS THAT THE TRIAL COURT FOUND WERE PROVEN. A RATIONAL JURY WOULD HAVE FOUND THOSE PROVEN UNANIMOUSLY AS WELL. IF WE LOOK AT THIS FROM OBJECTIVE STANDARD, WE WOULD LOOK AT WHETHER OR NOT THE CCP WAS FOUND, FOR EXAMPLE. THERE WAS PLENTY OF EVIDENCE THAT MR. OKAFOR PLANNED THIS MURDER. THERE WAS EVIDENCE OF HIM TEXTING HIS FRIENDS TRYING TO MAKE SURE HE HAD WEAPONS.

19 HE ASKED HIS GIRLFRIEND AND ONE OF HIS FRIEND TO ACT AS A LOOKOUT. HE ASKED A FRIEND THE DAY BEFORE THE MURDER, THE DAY BEFORE THE MURDER TO GET HIM A HOODIE AND SOME RUBBER GLOVES. THAT HE NEEDED THOSE THAT NIGHT. HE AFTER THE MURDER OCCURRED HE ERASED TEXT MESSAGES IN REGARDS TO THE MURDER. THERE WAS ALSO AN INTERNET SEARCH THAT WAS DONE ON HIS PHONE THE DAY BEFORE THE MURDER IN WHICH THE SEARCH WAS, HOW DO YOU REMOVE GUNSHOT RESIDUE? A RATIONAL JURY HAD BEEN TOLD THEY HAD TO UNANIMOUSLY FIND THIS AGGRAVATOR WAS PROVEN WOULD HAVE FOUND THAT THE CCP AGGRAVATOR WAS PROVEN. IN REGARDS TO AVOID ARREST AGGRAVATOR THERE IS ALSO SUBSTANTIAL EVIDENCE THAT THE JURY WOULD HAVE FOUND THAT THAT WAS PROVEN AS WELL. MR. OKAFOR TOLD SEVERAL OF HIS FRIEND HIS ATTORNEY TOLD HIM THAT THE WITNESSES WERE GOING TO SHOW UP FOR TRIAL. HE ALSO TOLD HIS FRIENDS THAT, THAT THEY COULD NOT SHOW UP. HE DID NOT WANT THEM TO SHOW UP. WHEN HE WAS INSIDE THE HOUSE, BRIENNA CAMPOS TESTIFIED THAT THE PERSON THAT PULLED HER FROM HER BED, HE WAS THE PERSON WHO DID ALL THE, WHO ASKED ALL THE QUESTIONS WHEN ALL THREE VICTIMS WERE LYING ON THE FLOOR IN THE LIVING ROOM. SHE TESTIFIED THAT THAT PERSON ASKED, IS THIS HOUSE THAT WAS ROBBED? THAT PERSON ALSO ASKED WHERE THE OTHER TWO? THAT IS IN REFERENCE TO THE TWO PEOPLE THERE FOR THE ROBBERY THAT OCCURRED IN MAY BUT WAS NOT THERE FOR THE ROBBERY, AND

20 MURDER THAT OCCURRED IN SEPTEMBER. AND WHEN SHE SAID THAT THOSE TWO PEOPLE WERE NOT AT HOME, THAT GUNMAN SAID, THAT WE COULD WAIT. THERE ARE ONLY TWO PEOPLE WHO WOULD WANT TO GET RID OF THE WITNESSES TO THE PRIOR ROBBERY AND BURGLARY. ONE OF THOSE WAS BESSMAN OKAFOR. THE OTHER WITNESS WAS IN JAIL BECAUSE HE DID NOT MAKE BOND. SO A RATIONAL JURY WOULD HAVE UNANIMOUSLY FOUND IF THE JURY HAD BEEN INSTRUCTED TO DO SO THAT THE AVOID ARREST AGGRAVATOR WAS PROVEN. IN REGARDS TO HAC A RATIONAL JURY WOULD HAVE ALSO FOUND THAT AGGRAVATOR WAS PROVEN AS WELL. MR. ZALDIVAR HEARD THE GUN MAN SAY, SOMEONE IS GOING TO GET SHOT TONIGHT. HE ALSO HEARD BREANNA GET SHOT. HE WOULD HAVE ANTICIPATED HIS DEATH. REMINGTON CAMPOS TESTIFIED THAT AFTER BREANNA WAS SHOT THAT ALEX STARTED BREATHING HEAVILY AND HE WAS BRACING HIMSELF. THIS COURT HAS FOUND IN OTHER CASES THAT THE HAC AGGRAVATOR WAS PROVEN IN CASES IN WHICH THE VICTIMS WERE ACUTELY AWARE OF THEIR IMPENDING DEATHS. ONE OF THE CASES I CITED IN MY BRIEF WAS FARINA v. STATE WHERE THE VICTIM WAS UPSET DURING THE ROBBERY. HANDS TIED BEHIND BACK AND CONSCIOUS WHEN TWO COWORKERS WERE SHOT WHEN SHE WAS SHOT IN THE HEAD. A RATIONAL JURY WOULD HAVE FOUND THE HAC AGGRAVATOR WAS PROVEN AS WELL. THE STATE PRESENTED COMPELLING EVIDENCE THAT A REASONABLE JURY WOULD HAVE UNANIMOUSLY FOUND EACH THE AGGRAVATORS PROVEN

21 BEYOND A REASONABLE DOUBT. THAT EACH OF THE AGGRAVATORS WERE SUFFICIENT. THE MITIGATION, THERE WAS NO STATUTORY MITIGATION IN THIS CASE. THERE WERE 11 NON-STATUTORY MITIGATIONS OF THE MOST SERIOUS OF WHICH WAS THAT MR. OKAFOR WAS SEXUALLY ABUSED AS A CHILD. WHILE THAT IS SIGNIFICANT MITIGATOR, THE AGGRAVATION IN THIS CASE WAS OVERWHELMING. SO A RATIONAL JURY WOULD HAVE FOUND IF THEY CONSIDERED ALL THE AGGRAVATORS AND CONSIDERED THE LIMITED MITIGATION THEY WOULD HAVE FOUND THAT THE AGGRAVATORS OUTWEIGHED THE MITIGATORS. A RATIONAL JURY ALSO WOULD HAVE FOUND THAT DEATH WAS THE APPROPRIATE SENTENCE IN THIS CASE. MR. OKAFOR KILLED A WITNESS TO A CRIME. THIS CASE GOES TO THE HEART OF THE CRIMINAL JUSTICE SYSTEM. AND IN CLOSING, ON THIS ISSUE, A RATIONAL JURY IF THEY HAD BEEN INSTRUCTED THEY HAD, THAT THEY WOULD HAVE TO FIND UNANIMITY, THAT JURY WOULD HAVE DONE SO. I WANT TO GO ON TO THE ISSUES REGARDING THE VICTIM IMPACT STATEMENTS. ONE OF THE ISSUES THAT OPPOSES COUNSEL REFERENCE WAS BRIENNA CAMPOS' REFERENCES TO MR. OKAFOR AS A WANNABE GANGSTER. THERE WAS NO OBJECTION TO THAT STATEMENT. SO FUNDAMENTAL ERROR WOULD HAVE TO BE PROVEN. >> YOU AGREE THAT WOULD BE AN IMPROPER STATEMENT? >> IT WOULD BE, IT WOULD BE BUT ONLY REFERENCED IN ONE PAGE OF 13 PAGES OF HER TESTIMONY. MOST OF HER TESTIMONY ACTUALLY FOCUSED ON THE LIFE OF ALEX

22 ZALDIVAR. >> DID THEY, THE STATE WANT TO PUT ON MORE THAN THE SIX VICTIM IMPACT WITNESSES? >> I DON'T SEE ANY REFERENCE IN THE REGARD THEY WANTED TO DO MORE THAN SIX. >> WAS THERE ANY ATTEMPT TO LIMIT THE NUMBER OF VICTIM IMPACT WITNESSES? >> I BELIEVE THERE MIGHT HAVE BEEN A MOTION FILED BY THE DEFENSE. I CAN NOT SAY FOR SURE. THE REFERENCE TO MR. OKAFOR AS A WANNABE GANGSTER DID NOT BECOME A FEATURE IT OF THE TRIAL. SO FUNDAMENTAL ERROR WAS NOT PROVEN IN THAT CASE. AND IN REGARDS TO REMINGTON'S TESTIMONY AND IN REGARDS TO HIS SON, THAT WAS MENTIONED JUST BRIEFLY. THAT ALSO DID NOT BECOME A FEATURE OF THE CASE AS WELL. AND IN REGARDS TO THE ARGUMENT ABOUT, THIS ISSUE 3, THE DUE PROCESS VIOLATION WITH THE SIX VICTIM WITNESSES, THAT ARGUMENT WAS WAIVED BECAUSE THE DEFENDANTS PROPOSED JURY INSTRUCTION DURING THE PENALTY PHASE INCLUDED THE VICTIM IMPACT STATEMENT INSTRUCTION FROM THE STANDARD INSTRUCTIONS. SO THE DEFENSE HAS WAIVED THAT ARGUMENT. HOWEVER THERE IS NO LIMIT ON THE NUMBER OF VICTIM IMPACT STATEMENTS THAT CAN BE MADE. THIS COURT HAS NEVER DRAWN A BRIGHT LINE AS TO THE NUMBER OF PERMISSIBLE WITNESSES THAT THE STATE MAY PRESENT. IN REGARDS TO THE ARGUMENTS, IN REGARDS TO THE VICTIM IMPACT STATEMENTS THAT WERE MADE DURING THE SPENCER HEARING, THOSE STATEMENTS WERE MADE OUTSIDE THE PRESENCE OF THE JURY.

23 THEY WERE ONLY MADE IN THE PRESENCE OF THE COURT. SO THERE IS NO RISK THAT THE JURY WAS AFFECTED BY THOSE STATEMENTS AT ALL. AND THE TRIAL COURT, SINCE HE HEARS CASES ON A REGULAR BASIS HE KNOWS WHAT TO CONSIDER, WHAT NOT TO CONSIDER, SO HE WOULD HAVE TAKEN THAT INTO CONSIDERATION. AND THE LAST ONE, THE LAST THINGS I WANT TO MENTION IS THE TRIAL, OPPOSING COUNSEL'S REFERENCE TO THE NEXUS BETWEEN THE MITIGATING EVIDENCE AND THE CONDUCT AT ISSUE. ALTHOUGH THE TRIAL COURT MAY HAVE USED THE WORD, LOOKING AT THE CAUSATION IN THE SENTENCING ORDER, THE COURT WAS SIMPLY TAKING THE EVIDENCE, PUTTING THE MITIGATION EVIDENCE IN CONTEXT. FOR EXAMPLE, ONE OF THE MITIGATORS THAT WAS PROPOSED BY THE DEFENSE WAS THAT MR. OKAFOR HAD LOST A CHILD. THAT ONE OF HIS CHILDREN HAD DIED BEFORE. THERE WAS NO TESTIMONY IN REGARDS TO WHAT RELATIONSHIP HE HAD WITH THAT CHILD, HOW OFTEN HE SAW THAT CHILD AND THE COURT REFERENCED THAT IN HIS SENTENCING ORDER. SO HE SIMPLY WAS TAKING THE MITIGATION IN CONTEXT. HE WAS NOT STATING THAT CAUSATION WAS REQUIRED. >> DID THAT CHILD DIE BEFORE OR AFTER THIS CRIME? >> I'M SORRY? >> DID THE CHILD, MR. OKAFOR'S CHILD, DID HE DIE, DID THE CHILD DIE BEFORE OR AFTER THIS CRIME? >> THE RECORD DID NOT SAY. IT SIMPLY STATED HE HAD A CHILD THAT DIED. I CAN NOT RECALL IF HE GAVE THE ACTUAL DATE OR NOT THAT I DON'T

24 RECALL AT ALL. AND THEN THE LAST ISSUE I WANTED TO TOUCH UPON WAS THE EXCLUSION OF PROSPECTIVE JUROR FULL PER 105. THE RELEVANT INQUIRY WHETHER THE JUROR CAN PERFORM THE DUTIES ACCORDING TO THE COURT'S INSTRUCTIONS AND JUROR AS OATH. WHEN THE JURY MEMBER WAS QUESTIONED HE NEVER ONCE SAID HE COULD IMPOSE THE DEATH PENALTY. WHEN HE WAS ASKED BY THE PROSECUTOR, WHEN ASKED BY THE TRIAL COURT, IF HE FOUND THE EVIDENCE SUPPORTED THE DEATH PENALTY COULD HE VOTE FOR DEATH. HIS ANSWER WAS, I HONESTLY DON'T KNOW. HE WAS ASKED THAT AGAIN. HE RESPONDED AGAIN, I WON'T KNOW UNTIL I FACE THAT. AND HE STATED MORE THAN ONE TIME THAT HE JUST DID NOT KNOW. HE NEVER COULD SAY THAT HE COULD IMPOSE THE DEATH PENALTY AND SO THE STATE ASKED FOR A CAUSE CHALLENGE BECAUSE THE JUROR PANEL MEMBER WAS JUST NEVER FIRM ON WHETHER OR NOT HE COULD VOTE FOR DEATH IF THE EVIDENCE SUPPORTED IT. I CITED SEVERAL CASES. JOHNSON v. STATE, CONTE V. STATE, IN WHICH THIS COURT DETERMINED WHEN A JURY PANEL MEMBER CAN NOT GIVE A YES OR NO ANSWER WHETHER THEY CAN VOTE FOR DEATH THAT A CAUSE CHALLENGE WAS PROPER. THE TRIAL COURT WAS CORRECT IN GRANTING THE STATE'S CAUSE CHALLENGE ON THIS ISSUE. IF THERE ARE NO MORE QUESTIONS, I ASK THAT YOU AFFIRM THE CONVICTION AND THE SENTENCE. >> MAY IT PLEASE THE COURT. IF I COULD CLARIFY A COUPLE OF ISSUES QUICKLY. ONE OF THE CHILDREN DIED CAN

25 JUST BEFORE THE TRIAL SO AFTER THE MURDER. >> JUST BEFORE THE TRIAL BUT AFTER THE MURDER. >> ONE CHILD DIED BEFORE THAT AFTER AN ORGAN TRANSPLANT. AS FOR THE WAIVER ISSUE, ACTUALLY THE DEFENSE COUNSEL MOVED TO LIMIT THE VICTIM IMPACT TESTIMONY ON AUGUST 27th, THAT WOULD HAVE BEEN PRIOR TO THE SPENCER HEARING. >> TO LIMIT IT IN WHAT WAY? >> TO RESERVE IT TO THE SPENCER HEARING. >> EXCUSE ME. >> TO RESERVE IT FOR THE SPENCER HEARING RATHER THAN THE PENALTY PHASE. THAT WAS ON AUGUST 25th. >> BUT NOT TO LIMIT THE NUMBER OF WITNESSES? >> CORRECT. THAT'S CORRECT, YOUR HONOR. AND THEN, SO THE WAIVER ARGUMENT, DEFENSE COUNSEL FILED HIS PROPOSED JURY INSTRUCTIONS AFTER THE TRIAL COURT ALREADY MADE THE RULING ON THAT. SO THE TRIAL COURT RULED ON AUGUST 27th, 2015, FIVE DAYS LATER, ON SEPTEMBER 1st, HE FILED HIS PROPOSED INSTRUCTIONS WITH THAT VICTIM IMPACT INSTRUCTION IN IT. AS FOR THE "SCARFACE" COMMENT TO THE JURY, IT IS NOT THE LENGTH OF THE COMMENT. IT IS THE IMPACT OF THE COMMENT ON THE JURY. THAT IS THE STANDARD THAT THIS COURT HAS ALWAYS APPLIED TO ERRORS SUCH AS THIS. AN ERROR OF THIS MAGNITUDE WHERE IT'S NOT JUST A PASSING REFERENCE, IT IS, SHOULDN'T SAY IT BRIEFLY. SHE WENT IN DEPTH BIT. >> BACK TO THE ISSUE OF THE GUN,

26 THE MAGAZINE, WAS THAT USED BY THE STATE IN CLOSING ARGUMENT? >> STATE IN CLOSING ARGUMENT ADMITTED MR. OKAFOR DID NOT USE IT. >> THEY DID. AND WHAT WAS THE OBJECTION MADE BY THE DEFENSE LAWYER TO ITS ADMISSION? >> IT WAS MADE ON FOR RELEVANCE AND THAT'S AT PAGE 3010 OF THE TRANSCRIPT. SO IT WAS A RELEVANCE OBJECTION. >> THE WAY IT WAS BRIEFED, AND I HAVEN'T LOOKED AT THE RECORD, BUT DETECTIVE MORECI? >> CORRECT. >> TESTIFIED WHEN HE EXECUTED THE SEARCH WARRANT AT WALLACE'S HOME HE FOUND FIREARM RELATED MATERIAL, AND THAT WAS THE HIGH-CAPACITY MAGAZINE. THERE WAS AN OBJECTION TO THE TESTIMONY AT THAT POINT WHICH IS THE RELEVANCE OBJECTION YOU'RE MAKING. >> YES, YOUR HONOR. >> THE TRIAL JUDGE, AS I RECALL, NOTED THAT THE, THAT THERE WAS A CALL FROM OKAFOR TO WALLACE, RIGHT BEFORE THE MURDERS. THAT WALLACE FIT THE DESCRIPTION OF THE SECOND PERSON INVOLVED IN THE CRIME. THAT WALLACE WAS CARRYING A RIFLE AND THAT THE JUDGE ALLOWED THE TESTIMONY SUBJECT TO THE STATE LATER TYING IT UP AND TYING THE MAGAZINE TO A RIFLE WHICH FIT THE DESCRIPTION THAT OKAFOR, AND OVERRULED THE OBJECTION, IS THAT CORRECT? >> CORRECT, YOUR HONOR. >> NOW YOU ARE OBJECTING TO ADMISSION OF THE EVIDENCE WHICH DIDN'T OCCUR AT THAT TIME. YOUR OBJECTION AT THE TIME WAS TO THE TESTIMONY. THERE IS NO INDICATION IN THE BRIEFING THAT THERE WAS EVER AN

27 OBJECTION LATER WHEN THE STATE HAD THE FIREARMS EXPERT ON THE STAND AND WHEN THE MAGAZINE WAS INTRODUCED INTO EVIDENCE OF WAS THERE AN OBJECTION TO THE INTRODUCTION INTO EVIDENCE OF THE CAPACITY MAGAZINE YOU'RE NOW ARGUING ABOUT? >> OFF THE TOP OF MY HEAD I DON'T KNOW WHETHER THERE WAS AN OBJECTION WHEN THE FIREARMS EXPERT ACTUALLY TESTIFIED. I CAN TELL YOU THIS. THAT ONE EVER THE WITNESSES, REMINGTON CAMPOS, DESCRIBED HIMSELF AS A FIREARMS AFICIONADO AND HE DESCRIBED THE WEAPON. >> I MEAN YOU WOULD AGREE THAT OBJECTION TO TESTIMONY THAT WAS ALLOWED SUBJECT TO LATER LINKING UP WOULD NOT PRESERVE AN OBJECTION TO ADMISSION OF THE EVIDENCE LATER? IF THE STATE THEN MOVED THAT EVIDENCE INTO ADMISSION, AND THERE WAS NO OBJECTION STATED OR FIRMLY STATED NO OBJECTION, THE PRIOR OBJECTION WOULDN'T PRESERVE THE ISSUE WITH RESPECT TO THE PHYSICAL EVIDENCE THAT WAS ADMITTED AT TRIAL? >> I'M NOT SURE I DO AGREE WITH THAT? >> REALLY. >> I'M SPECULATING I DON'T KNOW WHETHER OR NOT THERE WAS ACTUAL OBJECTION. >> THE RELEVANCE OBJECTION TO TESTIMONY SOMEHOW EQUATES TO A LATER ADMISSION TO EVIDENCE? >> SURE. SO, IN THE MIDDLE OF A TRIAL, FROM TRIAL ATTORNEY'S STANDPOINT YOU ALREADY ARGUED TO THE JUDGE THIS FIREARM IS NOT RELEVANT. IT DOESN'T MATCH THE BALLISTICS. DOESN'T MATCH THE DESCRIPTION OF WHAT THE EYEWITNESS GAVE. I WOULD SAY THAT IS ENOUGH TO

28 PRESERVE IT BEFORE THIS COURT. TO PRESERVE THE ERROR FOR APPEAL. >> I MEAN THEN THE FIREARMS EXPERT GETS ON AND DESCRIBES IT IS A RIFLE AND THE WALLACE WAS CARRYING A RIFLE. I MEAN, IF THERE IS NO OBJECTION WHEN IT IS INTRODUCED AFTER THAT TYING UP TESTIMONY, YOU'RE ARGUING THAT THE TYING UP TESTIMONY WASN'T SUFFICIENT TO ACTUALLY TIE IT UP. >> CORRECT, YEAH, THAT'S THE ARGUMENT. HE ARGUED OR HE TESTIFIED IT WAS AN AK-47 TYPE ASSAULT RIFLE. THIS CLIP MATCHED A.22 RIFLE. SO NOT NECESSARILY THE SAME THING. GOING BACK QUICKLY, TO, TO THE ERROR OF ADMITTING THAT CLIP. IT JUST CONFUSES THE JURY. IT'S NOT RELEVANT. IT CONFUSES THEM ABOUT THE ISSUES BEFORE THEM. THERE IS PLENTY OF CASE LAW IN THIS STATE ABOUT, IF THE FIREARM IS NOT USED AS PART OF THE CRIME, OR IF IT CAN'T BE CONCLUSIVELY LINKED TO DEFT IT IS NOT RELEVANT AND IN THIS CASE IT WAS PREJUDICIAL. YOUR HONORS, IF THERE ARE NO FURTHER QUESTIONS FROM THE COURT I WOULD ASK THE COURT TO REVERSE THE GUILT PHASE AND PENALTY PHASE. THANK YOU. >> THANK YOU FOR YOUR ARGUMENTS.